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by Andrew Egger
As he tries to justify accepting a gift of a $400 million Qatari plane, Donald Trump is caught on the horns of an inescapable dilemma. If the Qataris are giving him the plane in exchange for something, it’s a corrupt bribe—a transaction so unforgivable the Supreme Court took pains to note it was not included in the sweeping grant of presidential immunity it created last year.¹ If, on the other hand, they’re giving him the plane in exchange for nothing, then it’s by definition a gift—which runs headlong into the brick wall of the Constitution’s Emoluments Clause, which forbids U.S. officeholders from accepting gifts without the consent of Congress “of any kind whatever, from any King, Prince, or foreign State.”
In a better world than this, that would pretty much be the end of it. The moment the deed to Arab Force One changed hands, the Constitution Police would burst through the wall like the Kool-Aid man. “Hey!” they’d shout sternly. “You’re not allowed to do that!” “Oh, our mistake!” Trump and the Qataris would reply, and everyone would go their separate ways.
Unfortunately, no such wholesome force exists, and all the relevant parties seem to be soldiering ahead with the obviously corrupt transaction. So what’s to be done?
Start with the easiest and most implausible option. Congress, of course, could impeach the president. We’d like to live in a world where presidents feared to take such actions, knowing Congress’s vengeance would be swift and sure. In this world, alas, Congress is about as likely to impeach Trump as he is to be arrested by the Constitution Police.
But what about Congressional action short of impeachment? After all, a remarkable number of Republican lawmakers—including plenty of staunch allies of the president—have already registered their discomfort with the whole affair. GOP majorities in both houses are slim: It’s a virtual certainty that majorities in both the House and Senate disapprove of the plane swap.
A coalition of 27 Senate Democrats have already introduced a resolution condemning the transfer. But as Ryan Goodman of Just Security argued this week, that may be approaching the problem from the wrong end. Rather than register their disapproval, Goodman said, both houses of Congress should bring up a motion of consent for the plane—then vote it down.
It’s a subtle difference, but a significant one. By voting down a consent motion, Congress would be fulfilling to the letter its obligation under the Constitution—to give or to withhold the consent by which no gift can be constitutionally bestowed on the president.
What would happen next is unclear. A coalition of lawmakers could bring suit against the White House—but the available path there is narrow, thanks to an appellate court ruling during Trump’s first term (sort of weird how courts never had to address these issues before, huh?) that individual members of Congress lack standing to sue the administration over potential emoluments violations. Would their case be strengthened by having an explicit act of Congress—the withholding of consent over this specific violation—to stand on? Or would Congress need to act as a body to bring a suit—which would presumably require buy-in from Republican leaders in the House, the Senate, or both? Many questions obviously remain.
Here’s one thing that should be painfully clear by now, though. The old regime turns out to have been one under which most statutory restraints on presidential action turned out to be pretty much just suggestions, able to be jettisoned at the president’s say-so, provided Congress didn’t have the spine to impeach him for it. That regime creaked mightily under Trump the first time around, and now seems in danger of collapsing altogether.
It’s remarkable to think of how things might have been different—how Joe Biden and his Democratic Congress, for instance, might have used his term in office to throw up taller, stiffer restraints around the presidency. Instead, they chose to view Trump 1.0 as a blip—a momentary mania to which the voters would never see fit to return. We can only pray that—should we be fortunate enough to see another decent president reasonably soon—he or she won’t make the same mistake again.
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